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July 30, 2012

Re:       Affordable Housing Trust Funds              

Dear Mayor:

I wanted to update you on recent litigation regarding affordable housing trust funds.

A plaintiff suing Marlboro Township in Monmouth County sought to persuade a trial judge to assume jurisdiction over the Township’s trust fund and the issues pertaining to it.  In his order released today, the trial judge refused to assume jurisdiction, noting that the Roberts Bill (P.L. 2008, c 46) conferred “exclusive jurisdiction” on COAH over trust fund issues.

According to the Court, municipalities that have a dispute with COAH over their trust funds must follow the process outlined by the Appellate Division in their July 13 2012 order.  This process includes notice from COAH outlining the amount subject to forfeiture along with how COAH calculated that figure.  It further permits municipalities to contest any forfeiture before the COAH board prior to the transfer taking place.

Our advice on the issue remains largely the same.  We recommend that you respond to Sean Thompson’s July 24, 2012 letter by the August 13, 2012 deadline.  In your response, set forth your reasons as to why you feel you have satisfied the “commit to expend” requirement of P.L. 2008, c 46.  If COAH does not agree with your interpretation, and attempts to take what you feel are committed funds, we urge you to utilize your right to contest the transfer before the COAH board.

In the July 14, 2012 order, the Appellate Division gave a definition of what “commit to expend” means.  If the municipality disputes the interpretation of “commit to expend” keep in mind that the Court’s decision was merely an interim decision, not a final one, and the case remains ongoing.

The Appellate Division recently set a briefing schedule for this case, and the final briefs are due by October 19, 2012.  We will keep you informed of any further developments.

Finally, we emphasize that both the statute and the July 16 Appellate Division decision make clear that only COAH, and not a member of its staff, has a right to demand a transfer of your trust funds..

If you have any questions on these issues, please do not hesitate to contact Senior Legislative Analyst Michael Cerra at ext. 120 or at, or Staff Attorney Matthew Weng at ext. 137 or at

Very truly yours,


William G. Dressel, Jr.
Executive Director




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